Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the New Lebanon Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition and transportation costs at the Kildonan School (Kildonan) for the 2003-04 school year. The Board of Education cross-appeals from the impartial hearing officer's determination that the Committee on Special Education (CSE) which met in August 2003 was not properly constituted. Respondent also cross-appeals from the impartial hearing officer's determination that petitioners' hearing request was timely. The appeal must be dismissed. The cross-appeal must be dismissed.
The student was 11 years old and had just completed the fifth grade at Kildonan when the hearing began at the end of June 2004. Kildonan, described as a private school designed for students with dyslexia (Tr. p. 1029), has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student demonstrates deficits in areas that affect his ability to master and apply basic alphabetic principles necessary for the development of reading and writing skills (Dist. Ex. 11 at p. 11). Specifically, he has difficulties with phonemic awareness, i.e. the ability to perceive, analyze and synthesize the patterns of sound in spoken words (Dist. Ex. 11 at pp. 7, 13). He also has difficulties with short-term and working memory (Dist. Ex. 11 at p. 13). Additionally, he has difficulties with speed and fluency in learning and recalling information (Dist. Ex. 11 at pp. 8, 11). The student's eligibility for special education and his classification as a student with a learning disability are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
The student was initially classified in February 2000 when he was in the first grade (Tr. pp. 688, 695). He reportedly received special education and speech, language and reading services in first and second grades (Tr. pp. 690, 696-97). For third grade during the 2001-02 school year, the student continued to receive special education services (Tr. pp. 702, 709), including vision therapy (Dist. Ex. 12). He also had access to an FM device for at least a portion of his third grade year to address his difficulty hearing when background noise was present (see Dist. Ex. 14; Tr. pp. 191, 706).
Respondent's CSE met in June 2002 for the student's annual review (Parent Ex. F). The CSE approved petitioners' request for an independent educational evaluation and an audiological evaluation, as well as a vision assessment and any further recommended vision therapy services, all at district expense (Parent Ex. F at p. 7).
During the summer of 2002, after the student completed the third grade, he attended Dunnabeck at Kildonan, a summer program for children who have dyslexia (Parent Ex. G at p. 3, Parent Ex. H). At the end of the summer, the evaluation that had been approved by the CSE at the June 2002 meeting was conducted by an independent evaluator selected by petitioners (Dist. Ex. 11; Tr. pp. 174-75). The independent evaluator administered the Woodcock-Johnson III Tests of Cognitive Ability which yielded standard (and percentile) scores of 80 (9) on the phonemic awareness III cluster, 66 (1) on the working memory cluster, and 76 (5) on the cognitive fluency cluster (Dist. Ex. 11 at p. 5). On the Woodcock-Johnson III Achievement Battery, the student achieved standard (and percentile/grade equivalent) scores of 77 (7/2.2) in letter-word identification, 86 (18/2.1) in word attack, 75 (5/2.0) in reading fluency, 77 (6/1.8) in passage comprehension, and 83 (13/2.6) in spelling (Dist. Ex. 11 at p. 10). He also achieved subtest scores of 77 (7/2.3) in writing fluency and 94 (34/2.8) for his writing samples, yielding a written expression score of 82 (11/2.5) (id.). The independent evaluator concluded that the student's cognitive and academic profiles were consistent with "phonological dyslexia" (Dist. Ex. 11 at p. 13). She reported that the student had difficulties with knowledge of alphabetic principles (Dist. Ex. 11 at p. 10). He also had difficulties with basic reading skills which, she explained, referred to automaticity and accuracy in reading at the single word level, rapid word recognition, and phonetic decoding of unfamiliar words (Dist. Ex. 11 at p. 11). The independent evaluator noted the student's low performance on measures of reading comprehension and written expression and opined that his performance appeared to be directly related to limitations in his basic skills accuracy (Dist. Ex. 11 at p. 12).
The independent evaluator made a number of recommendations including that the student receive reading instruction, multisensory in design, in either a one-to-one or highly structured and controlled small group setting in regular daily sessions (Dist. Ex. 11 at p. 14). She suggested that each session last for a substantial period of time (id.). She recommended the use of the Language! program noting that it was "heavily rooted in sequential language development" beginning at the phonological level and that it provided specific training in understanding how sounds comprise words and directly "map" to printed words (Dist. Ex. 11 at p. 15). She also recommended proactive case management of the student's program (id.). The independent evaluator shared her preliminary recommendations with the CSE Chairperson at the end of August 2002 (Tr. p. 184). Based upon the independent evaluator's recommendation to use the Language! program, and with input from the student's mother who was familiar with the program and agreed with the independent evaluator's recommendation, the district purchased the program (id.).
The CSE reconvened on October 25, 2002 to review the final report of the independent evaluator, who participated in the meeting by telephone (Dist. Ex. 9; Tr. p. 38). The CSE relied on the independent evaluator as a key person in developing the student's individualized education program (IEP) and developed goals and objectives reflecting the independent evaluator's recommendations (Tr. p. 179). Formal implementation of the Language! program began in November 2002 when the materials were received (Tr. pp. 184-85).1 During the 2002-03 school year, the student received reading and Language Arts instruction in a small group setting five times per week for 108-minute sessions, consultant teacher services in general education Social Studies and the support of an aide for general education Math and Science (Parent Ex. F). In addition, various program and test modifications were implemented within the general education setting to address his difficulties in reading and writing.
Respondent's CSE began the student's reevaluation process in February 2003 (Dist. Ex. 17). In a reading assessment conducted that month, one of respondent's reading teachers reported that the student read ten more sight words than he read when she last tested him in March 2002 (Dist. Exs. 8, 10). She noted that the student read the words more quickly and rarely stopped to sound out a word (Dist. Ex. 8). With respect to decoding real and pseudo words, the student read one less real and one less pseudo word compared to the March 2002 testing. Again, the evaluator noted that the student was much faster and did not need to sound out every word. The evaluator also reported that the student's reading accuracy had improved from 91 percent in March 2002 to 98 percent on an end of first grade, or level 4, book. He also read a beginning second grade, or level 5, book with 98 percent accuracy. The evaluator noted that the student was very fluent and had little difficulty. The student read an end of second grade, or level 6, book with 96 percent accuracy. The evaluator noted that the student's overall reading was choppy with many miscues, that he self-corrected four times and that he needed teacher assistance at least seven times. The student scored well in comprehension at all levels. He was able to retell stories and answer literal, inferential and critical questions.
In a letter dated March 30, 2003 to respondent's superintendent, petitioners indicated that the services provided to their son did not address his specific educational and emotional needs and requested that he be placed at Kildonan for the 2003-04 school year at respondent's expense (Dist. Ex. 19 Mar. 30, 2003 letter, Parent Ex. I). They also requested daily round trip transportation. The superintendent responded in April 2003 advising petitioners that the CSE could only recommend placement at an approved school (Dist. Ex. 19 Apr. 16, 2003 letter). He outlined the various evaluations that were conducted, the services that were recommended and the equipment that had been provided to their son since June 2001, and noted that comments from their son's teachers indicated that he was making progress in the recommended program (id.).
On April 10, 2003, at petitioners' request, a meeting was held regarding the specific evaluations that would be conducted for the student's reevaluation (Dist. Ex. 18). On April 12, 2003, the Wechsler Individual Achievement Test (WIAT) was administered to the student (Dist. Ex. 21 at p. 3, Parent Ex. K). He achieved standard (and grade equivalent) scores of 82 (2.4) in basic reading, 89 (3.1) in reading comprehension, 90 (3.6) in spelling, and 96 (3.9) in written expression.
In a May 8, 2003 psychoeducational evaluation, the student obtained standard scores of 77 on Forms A and B of the sight word efficiency subtest of the Test of Word Reading Efficiency (TOWRE) which measures the student's ability to recognize familiar words accurately and fluently at a single glance without the use of context (Dist. Ex. 6). On the phonemic decoding subtest, which measures the student's ability to sound out words based upon phonemic principles alone, the student obtained a standard score of 85 on Form A and a standard score of 89 on Form B. On the Piers-Harris Children's Self-Concept Scale, the student scored in the average range. He reported a general and positive sense of self-concept and self-esteem. While he also reported that he did not like going to school due to his learning difficulties, he did not report any anxiety specific stressors and he reported that he did not worry about things a lot.
The CSE met on June 5, 2003 to develop the student's IEP for the 2003-04 school year (Dist. Ex. 21). It recommended that the student be classified as having a learning disability and that he receive special class instruction in Language Arts five days per week for 60 minutes, resource room services five days per week for 40 minutes, consultant teacher services during Science and Social Studies classes two times per week, aide support during Science and Social Studies classes three times per week alternating with the consultant teacher, and counseling once per week. It also recommended various program modifications. At the end of the meeting, petitioners informed the CSE that they were rejecting the proposed IEP and intended to send their son to Kildonan for the 2003-04 school year (Parent Ex. K).
In a June 6, 2003 letter, petitioners advised respondent's superintendent that they were rejecting the June IEP (Parent Ex. J). They indicated that they did not believe the school system had the expertise to appropriately address their son's learning difficulties. They further indicated that they would be placing their son at Kildonan for the 2003-04 school year, that they would be seeking tuition reimbursement and that the district was obligated to provide transportation.
At the end of June 2003, petitioners received their son's final report card for fourth grade as well as a quarterly report on their son's progress toward meeting his October 2002 IEP goals and objectives (Dist. Exs. 4, 5; Tr. pp. 793-94).
By letter dated July 18, 2003, respondent's superintendent, reiterating earlier communications and discussions, advised petitioners that the district had no authority to place their son at Kildonan (Dist. Ex. 19 July 18, 2003 letter). With respect to petitioners' request for transportation to Kildonan, the superintendent explained that the CSE would convene to compare the program recommended by the CSE with the program at Kildonan to determine whether the services were similar.
In a letter dated August 13, 2003, petitioners advised the CSE Chairperson that they had not yet received a copy of the IEP that was developed at the June 2003 CSE meeting (Dist. Ex. 19 Aug. 13, 2003 letter). They listed several concerns regarding the program recommended at the June 2003 CSE meeting including that their son's specific needs as a learning disabled student were not being addressed adequately, that the Language Arts class was not an appropriate intervention, and that increasing services to include resource room would result in their son being pulled out of regular education classes for greater periods of time, further isolating him from his peers. Additionally, they expressed concerns about their son's frustration and self-esteem, and indicated that on many days he cried for two to three hours after a difficult day at school. Petitioners also requested a class profile for the recommended Language Arts special class and the resource room. They again advised the CSE Chairperson that they were rejecting the placement proposed by the CSE for their son for the 2003-04 school year, that they intended to enroll their son at Kildonan at public expense, and that they were requesting daily round trip transportation to Kildonan.
The CSE Chairperson responded to petitioners in a letter dated August 15, 2003 (Dist. Ex. 19 Aug. 15, 2003 letter). She advised them that she scheduled a CSE meeting for August 25, 2003 to discuss their request for transportation and to address the concerns they raised in their August 13, 2003 letter.
At the August 25, 2003 meeting, the CSE discussed petitioners' concerns regarding their son's emotional needs and the recommended reading program (Dist. Ex. 3). In response to petitioners’ concerns involving their son’s emotional needs, the CSE offered an independent psychiatric evaluation, which the parents declined (Tr. pp. 235-36). The CSE also offered to recommend a functional behavioral assessment (FBA) and discussed the possibility of outside counseling in addition to counseling at school (Tr. pp. 235-36). The June 5, 2003 IEP was amended to include statements regarding the student's anxiety and his parents' concerns about his self-esteem (Tr. p. 268). Respondent's CSE Chairperson sent the revised IEP to petitioners on August 29, 2003 (Dist. Ex. 3; Tr. pp. 282-84). In her transmittal letter, the CSE Chairperson indicated that the IEP was revised to address the emotional issues petitioners described at the meeting and to better define the "specifics of the special education instruction" their son would have received had he attended school in the district. She advised petitioners that she had asked their son's special education teacher to draft goals and objectives that track the Language! curriculum to ensure that the specifics of the curriculum regarding progress were clearly communicated. She also indicated that the CSE considered and denied their request for transportation to Kildonan. The CSE Chairperson asked petitioners to review the IEP and to contact her with any questions or concerns (Dist. Ex. 3). Petitioners were also offered an opportunity to speak with the special education teacher regarding the amended goals and objectives, but did not respond to this offer (Tr. pp. 300-01).
By letter dated September 2, 2003, petitioners indicated that they received the August 2003 IEP and again advised the CSE Chairperson that their son would be attending Kildonan for the 2003-04 school year at public expense (Dist. Ex. 2). They indicated that the programs and services that were recommended for their son over the years were either never delivered or delivered belatedly on an inconsistent basis (id.). Petitioners also provided consent for certain evaluations (id.). Petitioners' son began attending Kildonan in September 2003 (Tr. p. 800).
On May 14, 2004, petitioners requested an impartial hearing challenging the June 2003 IEP and seeking tuition and transportation reimbursement for Kildonan (Dist. Ex. 1). The impartial hearing began on June 24, 2004 and concluded on November 15, 2004, after eight hearing sessions. The impartial hearing officer rendered his decision on January 9, 2005. He found that the CSE which developed the August 2003 IEP failed to include a special education teacher. He then found, however, that the CSE that developed the June 2003 IEP was properly constituted.
The impartial hearing officer also found that the June 2003 IEP identified the student's academic needs, that the goals and objectives prepared for the 2003-04 school year were appropriate, and that the student had been making appropriate progress in the Language! program during the 2002-03 school year (IHO Decision, p. 22). He further found that petitioners were provided with significant opportunity to participate in developing the goals and objectives and other recommendations for their son for the 2003-04 school year. The impartial hearing officer concluded that the IEP was substantively appropriate under the Individuals with Disabilities Education Act (IDEA) and that respondent offered a free appropriate public education (FAPE) to the student for the 2003-04 school year (IHO Decision, p. 26).
With respect to petitioners' claim that the CSE failed to consider the continuum of placement alternatives, the impartial hearing officer found that neither federal nor state regulations mandate a review of the full continuum at an IEP meeting in all cases. The impartial hearing officer found this particularly so once a determination was made by a CSE that the student’s needs could be met in general education classes with supports and services (IHO Decision, p. 21). Further, he declined to find a violation of a FAPE as a result of respondent's failure to comply with petitioners' request for a class profile at the CSE meeting. The impartial hearing officer concluded that no class profile was needed because the student was to be grouped with the same students as the previous year and petitioners were already familiar with the grouping (IHO Decision, p. 21). The impartial hearing officer also found that that there were no delays in responding to petitioners' complaints and that an appropriate IEP was in place in advance of the 2003-04 school year.
The impartial hearing officer further found that petitioners' claim for reimbursement accrued in September 2003 when they placed their son in Kildonan, less than one year from their request for an impartial hearing and was, therefore, timely raised. Finally, the impartial hearing officer found that petitioners were not entitled to reimbursement for their transportation expenses because he determined that a full-time special education placement at Kildonan was not similar to the program recommended by the CSE which included regular education with support services (see N.Y. Educ. Law § 4402[d]).
Having found that respondent met its burden of demonstrating the appropriateness of the recommended program, the impartial hearing officer noted that although he did not have to reach the issue of whether Kildonan was appropriate or whether equitable considerations supported petitioners' claim for reimbursement, were it necessary to do so, he would have found that Kildonan was an appropriate program. He also would have reduced petitioners' reimbursement award by 50 percent due to their unreasonable delay in requesting an impartial hearing.
Petitioners appeal from the impartial hearing officer's decision on a number of grounds. Initially, they claim that the impartial hearing officer failed to identify which IEP he was reviewing and that he erred in finding that it was appropriate. Petitioners also contend that the goals and objectives on the June IEP are inadequate and do not correspond to the student's identified deficits. Specifically, petitioners assert that the June 2003 IEP does not include goals for improving fluency, that there are no goals to address the student's weaknesses in basic reading, reading composition, sight word efficiency and phonemic decoding efficiency, that there is only one goal addressing written language skills, that there is no goal for vocabulary, that there are no goals for resource room, Science, Social Studies, consultant teacher, or aide support, and that the counseling goals are not appropriate. Additionally, petitioners assert that the impartial hearing officer improperly measured progress and that there was no evidence in the record to support a finding of progress. Petitioners also challenge the impartial hearing officer's findings regarding the continuum of placement alternatives and the class profile. Respondent cross-appeals from that part of the impartial hearing officer's decision which found that the August 2003 CSE was improperly constituted and that petitioners' hearing request was timely.
First I will address respondent's cross-appeal from the impartial hearing officer's finding that petitioners' request for an impartial hearing was timely. Respondent argues that petitioners' claims are barred by the statute of limitations and should be dismissed because they did not request an impartial hearing until May 2004, more than one year after they knew of the injury resulting from what they alleged to be an improper special education program. It claims that petitioners knew of the injury in March 2003 when they first advised respondent of their intent to place their son at Kildonan. The IDEA does not prescribe a time period within which requests for administrative impartial due process hearings must be asserted. However, based upon the analysis set forth in M.D. v. Southington Bd. of Educ., 334 F.3d 217 [2d Cir. 2003], I have applied a one-year statute of limitations (see Application of the Bd. of Educ., Appeal No. 02-119). Here, petitioners' May 14, 2004 hearing request specifically challenges the IEP developed at the June 5, 2003 CSE meeting. I note that the parties dispute whether the June 2003 IEP or August 2003 IEP is the subject of this appeal. That issue is discussed below. In any event, petitioners requested an impartial hearing within one year of both IEPs and I find that their request is timely under the statute of limitations.
Respondent also cross-appeals from the impartial hearing officer's finding that the CSE that met in August 2003 was improperly composed. Before I address respondent's claim, I will determine which IEP is the subject of this appeal. I must first note that the June 2003 and August 2003 IEPs are substantially similar. The record shows that the June 2003 IEP was revised in August 2003 in response to concerns raised by petitioners and includes more specific and detailed information (Dist. Exs. 3, 21). I also must note that at the first impartial hearing session when the August 2003 IEP was entered into the record, petitioners' attorney offered to stipulate that the August 2003 IEP was the subject of the hearing and respondent's attorney indicated that the August 2003 IEP was the IEP she was defending (Tr. p. 6). As noted above, the record shows that the CSE met on August 25, 2003 in part in response to petitioners' concerns regarding the program and services recommended by the CSE at the June 2003 meeting. As a result of discussions at the August 2003 meeting, an IEP was prepared reflecting those revisions. Petitioners did not request an impartial hearing until May 2004, after having received the August 2003 IEP. The IEP of each student with a disability shall be reviewed and, if appropriate, revised, periodically but not less than annually (34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f]). An amended IEP supercedes the initial IEP (Application of a Child with a Disability, Appeal No. 96-7). I find that the August 2003 IEP amended and superceded the June IEP, and is, therefore, the IEP which is the subject of this appeal (see Application of a Child with a Disability, Appeal No. 99-54).2,3
As noted above, respondent asserts that the CSE that developed the August 2003 IEP was legally constituted. The IDEA requires that an IEP be developed by a group of individuals composed of at least one special education teacher, or where appropriate, at least one special education provider of such child (20 U.S.C. § 1414[d][B][iii]; see 34 C.F.R. § 300.344[a], see 8 NYCRR 200.3[a][iii]). The U.S. Department of Education has indicated that the special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A-Notice of Interpretation, Section IV, Question 26). Respondent argues that the school psychologist, who was the student's counselor during the 2002-03 school year, and the school social worker, who would have been assigned to the student for the 2003-04 school year as a consultant and counselor and would have been responsible for portions of the student's IEP, were present at the August 2003 meeting and were special education providers as defined in regulation. I am not persuaded that under the circumstances presented here, respondent has demonstrated that it was appropriate for a special education provider to participate at the August 2003 CSE meeting in lieu of a special education teacher. The CSE Chairperson testified that the meeting was held in part to address concerns raised in petitioners' August 13, 2003 letter (Tr. p. 299). In their August 13, 2003 letter, in addition to raising concerns about their son's self-esteem, petitioners asserted that the Language Arts class was not an appropriate intervention for him (Dist. Ex.19 Aug. 13, 2003 letter). While the record shows that the CSE discussed the student's emotional needs at the August 2003 meeting, the record also shows that the CSE discussed the student's reading program, and that after the meeting, the student's special education teacher was asked to revise the reading goals and objectives to be more consistent with the recommended reading program as had been discussed at the meeting (Dist. Ex. 3). Because the August 25, 2003 CSE meeting was convened in part to address petitioners' concerns which included concerns about their son's reading program, I find that the absence of the student's special education teacher from the meeting was a procedural violation.
However, not all procedural violations result in a denial of a FAPE. In their May 2004 request for an impartial hearing, petitioners claim for the first time that because the special education teacher did not attend the August 2003 CSE meeting they were left with unanswered questions and that the IEP developed as a result of that meeting was a nullity. Petitioners also claim that the goals and objectives prepared by the special education teacher were not presented to them for review, thus compromising the development of the IEP. I am not persuaded by petitioners' assertions that the failure to have their son’s special education teacher attend the August 25, 2003 CSE meeting denied their son a FAPE. I so find given the particular circumstances of this case, taking into consideration the parents’ significant amount of communication and collaboration with the special education teacher on an ongoing basis and that an appropriate program for the 2003-04 school year had already been formulated at the June 5, 2003 CSE meeting.
Importantly, the record shows that the formulation of the August 25, 2003 IEP was part of an ongoing collaborative process characterized by “ample” parent participation and “substantial” district responsiveness to parental requests for evaluations, programs, and services (IHO Decision, p. 16). The August 25, 2003 CSE meeting was the second CSE meeting that took place to develop the student’s program for the 2003-04 school year. The meeting occurred as an almost immediate response to recently raised parental concerns, for improvement of an educational program, developed by the June 5, 2003 CSE, which already offered a FAPE for the 2003-04 school year. It was also convened to address concerns raised subsequent to the June 5, 2003 CSE meeting. The record shows that the special education teacher met with petitioners three times in advance of the June 2003 IEP meeting to discuss goals and objectives (Tr. p. 55). The record further shows that the goals and objectives were discussed at the June 2003 CSE meeting (Parent Ex. K). The record also shows that when petitioners raised concerns about the goals and objectives at the August CSE meeting, the CSE discussed their concerns and revised the June 2003 IEP to reflect those discussions (Dist. Ex. 3). Additionally, respondent's CSE Chairperson sent a copy of the August 2003 IEP to petitioners and asked that they review it and contact her with any questions or concerns (id.). Petitioners responded, but did not raise any concerns about the goals and objectives, nor did they indicate they had unanswered questions (Dist. Ex. 2). Under the circumstances presented here, I am unable to find that petitioners were deprived of the opportunity to adequately participate in the IEP formulation process or that the student was denied educational benefits. Petitioners had input into the development of the goals and objectives prior to the June 2003 CSE meeting, they attended the June 2003 CSE meeting at which goals and objectives were discussed, they attended the August 2003 CSE meeting at which revisions to the goals and objectives were discussed, they were provided the opportunity to review both IEPs, and in various correspondence relating to the IEPs they voiced numerous concerns but failed to question the goals and objectives.
I will now turn to petitioners' appeal in which they contend that the impartial hearing officer erred in finding that respondent met its burden of demonstrating the appropriateness of the program its CSE recommended for their son for the 2003-04 school year and in denying their request for tuition and transportation reimbursement. The purpose behind the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-021). In order to meet its burden, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ; see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]). As for the program itself, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). The educational benefits provided to the disabled child must be meaningful in light of the limitations imposed by the student’s disability (Mrs. B., 103 F.3d at 1120, citing Rowley, 458 U.S. at 192, 202) and not trivial (id.). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The record shows that the IEP developed at the August 2003 meeting reflects current evaluations that identify the student's deficits in reading decoding, reading fluency, reading comprehension, spelling and written expression, as well as concerns regarding his self-esteem (Dist. Ex. 3). Contrary to petitioners' claims, the IEP contains goals addressing each identified area of need. For example, the IEP includes reading decoding goals with 11 supporting objectives presented in a systematic, sequential approach as recommended by the independent evaluator. The IEP also includes goals to increase the student's reading fluency, reading comprehension and vocabulary. Further, and again contrary to petitioners' claims, the IEP contains two writing goals, one of which addresses the need to increase the detail in and length of written work. The goal addresses editing written work including the spelling. In addition, the counseling goals relate to concerns regarding the student's confidence and self-esteem.
The IEP also provides for the use of appropriate special education services. The CSE recommended that the student receive Language Arts in a special class with a student to teacher ratio of 5:1, daily resource room services, and consultant teacher services in Science and Social Studies classes two days per week alternating with a teaching assistant the remaining three days per week. The student's IEP includes numerous program modifications consistent with the independent evaluator's recommendations. It also provides for monthly parent conferences with the student's homeroom teacher and special education teacher. The special education teacher testified that she would have been the teacher of the Language Arts special class and would have used the Language! curriculum (Tr. p. 67). She indicated that as consultant teacher, she would have provided support to the student in Science and Social Studies in areas including reading, writing, projects and reports (id.). The special education teacher further testified that in the resource room, she would have ensured that the student applied the skills that he learned in the Language! curriculum to Science and Social Studies (id.). She also would have pre-taught, re-taught and highlighted key information in the resource room, as well as lead group discussions involving content area readings (Tr. p. 69). The special education teacher stated that she would have served as the student's case manager which involved providing direction to the teaching assistant and working closely with content area teachers to ensure that the recommended program modifications and accommodations were implemented (Tr. p. 68).
I also find that the program recommended by respondent's CSE, at the time it was formulated, was reasonably calculated to confer educational benefits to the student and likely to produce progress. While the record shows that the student's performance on standardized tests was inconsistent, his performance on the assessment tools provided by the Language! program shows progress in his identified areas of need. The special education teacher testified that the student made satisfactory progress when she implemented the Language! curriculum during the 2002-03 school year (Tr. p. 48), and that she would have continued to use the Language! program with him during the 2003-04 school year had he remained in the district (Tr. p. 54). She indicated that during the 2002-03 school year she worked with the student on goals to address reading fluency, writing skills and comprehension (Tr. pp. 45-46). With respect to reading fluency, progress reports for the second quarter of the 2002-03 school year show that the student met an objective addressing nonphonetic fluency (Dist. Ex. 5 at p. 2). Although he did not meet an objective addressing phonetic fluency during the second quarter, he successfully accomplished the criteria for mastery of that objective on 20 of 23 drills (id.). Similarly, for the third quarter, although the student did not meet the phonetic fluency objective, he accomplished the criteria for mastery of that objection on 14 of 19 drills (id.). With respect to writing skills, the student demonstrated good retention and generalization of spelling words in written expression in the second quarter (Dist. Ex. 5 at p. 1). During the third quarter, he scored 95 and 100 percent on unit spelling tests (Dist. Ex. 5 at p. 9). With respect to comprehension skills, the student demonstrated progress on an objective addressing written responses to content area questions. The special education teacher noted that the student was able to respond to questions in a variety of formats and was beginning to write sentence and short paragraph responses (Dist. Ex. 5 at p. 4). At the end of the third quarter, the special education teacher reported that the student was achieving above average scores on content area assignments requiring short answers (Dist. Ex. 5 at p. 8).
I note that the special education teacher testified that while she had hoped that the student would have made more progress, the independent evaluator had advised her that she could expect the student to make three to four months’ progress in one year (Tr. pp. 54-55). In addition, I note that the academic dean at Kildonan testified that the student not only had difficulty with the phonology of language, but also difficulty with short-term memory and processing of information (Tr. p. 1038). He explained that because of the student's learning deficits it was going to take longer for petitioners’ son to understand basic concepts (Tr. pp. 1058-59). Based upon the information before me, I find that the student's progress using the Language! curriculum was meaningful in light of the limitations imposed by his disability. Accordingly, I find that respondent has met its burden of proving that it offered to provide a FAPE to the student for the 2003-04 school year. Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Kildonan was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).
I also concur with the impartial hearing officer’s determinations pertaining to class profile and consideration of the continuum of placement alternatives.
I have considered the parties' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
1 In September 2002, prior to this CSE meeting, the student's special education teacher, who has a master's degree in reading (Tr. p. 34), began attending a four-week program at the Reading Institute in Williamstown, Massachusetts. The program focused upon the teaching of phonemic awareness, phonological processing and morphology to students with reading disabilities (Tr. pp. 34-35). The special education teacher noted that she had learned of this program from the student's mother (Tr. p. 35). The special education teacher worked closely with the independent evaluator to develop goals, objectives, and instructional strategies for 2002-03 (Tr. pp. 45, 179).
2 Inasmuch as I have determined that the August 2003 IEP is the subject of this appeal and the elements of the June 2003 IEP are contained in the August 2003 IEP, I will construe petitioners' challenges to the June 2003 IEP as challenges to the August 2003 IEP.
3 Although I find that the August 2003 IEP is the operative IEP, I note that the impartial hearing officer made a determination that respondent offered to provide a FAPE for the 2003-04 school year based upon his conclusion that the June 5, 2003 IEP was substantively appropriate (IHO Decision, pp. 15, 26). I concur with the impartial hearing officer’s determination that the June 5, 2003 IEP offered a FAPE. His factual findings and conclusions pertaining to appropriateness of the June 5, 2003 IEP at the time it was formulated are well reasoned and supported by the record and I adopt them. Both the June 5, 2003 and August 23, 2003 IEPs offered a FAPE for the 2003-04 school year.